Bean v. Humphrey

¶1(concurring). I concur in the result reached by the majority, but I arrive at my conclusion by a process of reasoning entirely different from that contained in the majority opinion, so I give my views.

¶2I am thoroughly convinced that the State Highway Director 1 is a State Officer. In Downey v. Toler, 214 Ark. 334, 216 S. W. 2d 60, we held that a member of the Arkansas State Police force was a State Officer; and I think that holding conclusively establishes that the State Highway Director is a State Officer.

¶3But, having concluded that the State Highway Director is a State Officer, I then come to a study of Art. 19, § 23 of the Constitution, which is urged by the appellant as the Constitutional inhibition against any salary in excess of $5,000 to the State Highway Director. From my study of this Constitutional Section, and the cases construing it, I arrive at the conclusion that the judgment in the present case must be affirmed under the authority of Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380.

¶4Art. 19, § 23 of our present Constitution (adopted in 1874) reads:

“No officer of this State, nor any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites more than five thousand dollars net profits per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation. ’ ’

¶5Under the authority of this Constitutional provision, the Legislature passed Act 47 of 1875, which may now be found in § 12-1801, et seq., Ark. Stats. The germane portions of this Enabling Act of*Í875 read:

“It shall be the duty of each of the following named officers, viz: the Secretary of State, Auditor of State, Treasurer of State and Commissioner of State Lands, and of each officer of any county, city, town or village receiving fees or emoluments of office, to keep a record book, in which shall be entered on each day an account of all moneys or other funds received by him, in payment of fees or by way of emolument pertaining to his office said record showing in each instance by whom, on what account and in what funds, such payment was made.

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“If the total amount of the receipts of the office shall exceed in par funds, or their equivalent of value the sum of five thousand dollars ($5,000.00), then the officer shall further report the amount expended by him in the conduct of the business of his office for said year, and voucher for all such expenditures shall be produced by the officer reporting, and examined by such Judge, Mayor or other chief officer, and, if such expenditures be approved, the amount thereof shall be deducted from the gross amount or receipts as estimated as hereinbefore prescribed by the reviewing officer, and in all cases where the balance remaining in the hands of any officer shall exceed the sum of five thousand dollars ($5,000.00), or its equivalent, the excess shall at once be paid into the treasury. . . . ’ ’

¶6With the Constitutional and Statutory provisions being as above stated, this Court decided in 1907 the case of Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380. In that case, Griffin as a Taxpayer, brought suit against Rhoton, alleging: (1) that Rhoton, as Prosecuting Attorney was a State Officer; (2) that Rhoton, as such Officer, had received in excess of $5,000.00 net per annum from the Office of Prosecuting Attorney; and (3) that Rhoton had failed and refused to pay the said excess into the Treasury. The prayer was for an accounting and a payment of the excess.

¶7The Supreme Court of Arkansas held: (1) that Rhoton was a State Officer; but (2) that Art. 19, § 23, of the Constitution was not self-executing; and (3) therefore, no action could be brought under that Constitutional provision until the Legislature passed an Enabling Act broad enough to cover such action; and (4) that the Enabling Act of 1875 did not extend to the Office of Prosecuting Attorney. The Court pointed out that the Enabling Act, as heretofore quoted, listed only the following State Officers: Secretary of State, Auditor of State, Treasurer of State, and Commissioner of State Lands. Therefore Griffin’s action as a Taxpayer against Rhoton failed, because the Constitutional provision (Art. 19, § 23, the same as here involved) was not self-executing, and the Legislature had never extended the Constitutional provision to cover the Officer there involved. Here are some of the pertinent excerpts from that opinion:

“Is the provision in question self-executing?

“Judge Cooley laid down the following general rule for determining whether or not such provisions are self-executing: ‘A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.’ Cooley’s Const. Lim. (7th Ed.), p. 121.

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“We are of the opinion that the provision is not self-executing, and that it is inoperative without legislation putting it in force.”

¶8Griffin v. Rhoton, (supra), was decided by this Court in 1907; and I cannot find any Legislative enactment thereafter which could be called an Enabling Act to make Art. 19, § 23, of the Constitution apply to the office of State Highway Director. In fact, the 1875 Enabling Act —Act 47 of 1875 — -has never been broadened. So the effect of the holding in Griffin v. Rhoton has not been modified by the Legislature.

¶9Furthermore, we have frequently cited Griffin v. Rhoton (supra), on this point that Art. 19, § 23 of the Constitution is not self-executing. Some of the cases are: Ark. Tax Comm. v. Moore, 103 Ark. 48, 145 S. W. 199; Gotham v. Coffman, 111 Ark. 108, 163 S. W. 1183; Cumnock v. Little Rock, 168 Ark. 777, 271 S. W. 466; State v. Landers, 183 Ark. 1138, 40 S. W. 2d 432; and Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875.

¶10Neither in Griffin v. Rhoton, nor in any of the subsequent cases, has this Court ever attempted to draw any distinction to the effect that part of Art. 19, § 23, of the Constitution might be self-executing as to salaries, but not self-executing as to fees. Neither has there been any attempt in any of the cases to say that Art. 19, § 23, was self-executing as a Constitutional limitation on the power of the Legislature to fix salaries. No: the case of Griffin v. Rhoton (supra), held that Art. 19, § 23, of the Constitution was not self-executing; and every subsequent case has assumed that the whole Section was so classified, and not a part of it.

¶11It is not a question of what I would decide today if the matter were now here without a previous opinion.2 The point is, that either we must now overrule retrospectively Griffin v. Rhoton (supra), and every case that followed it, or we must follow Griffin v. Rhoton, which holds that Art. 19, § 23, of the Constitution is not self-executing. Faced with that alternative, I prefer to follow Griffin v. Rhoton. The results are: (1) that Art. 19, § 23, of the Constitution is not self-executing; (2) that the only Enabling Act passed by the Legislature to execute the said Constitutional provision is Act 47 of 1875 (% 12-1801, et seq., Ark. Stats.); and (3) that said Act of 1875 does not apply to the Director of State Highways. Until the Legislature enacts a more comprehensive Enabling Act to Art. 19, § 23, of the Constitution, then under Griffin v. Rhoton, this Court cannot declare void a salary appropriation like-the one in the case at bar.

¶12Therefore, I vote to affirm the decree of the Chancery Court.

¶15dissenting. It has never been supposed that the functions of a court include the right to read out of the constitution and statutes their obvious essentials, and to substitute matters of convenience thought by some of the judges to be wholesome from a standpoint of public emergency.

¶16Perhaps nothing is more accurate by way of summation than the general but erroneous belief that Chief Justice Hughes of the U. S. Supreme Court once remarked that the constitution is just what the judges say it is. The statement was taken from context and is not a correct presentation of what that great official said.

¶17But today we are having brought home to us the factual realization that in Arkansas the" constitution — far from being the fundamental law of the land — is what a majority of the court says it is or is not.

¶18Amendment No. 42 was conceived and adopted in consequence of a praiseworthy purpose to measurably remove the Highway Commission from the control of any governor. To what extent the plan may succeed depends upon sincerity of the state’s chief executive and an unswerving course by the commissioners: a hands-off policy upon the one hand and a refusal upon the other to be influenced or coerced.

¶19In an opinion fortunate from the standpoint of expediency and in its recognition that the constitutional maximum of $5,000 per annum allowable to state officers is not sufficient to compensate a competent engineer as Highway Director, but unfortunate in that resort is had to strange reasoning in disregard of constitutional and statutory provisions, the court’s majority holds that one designated by statute as an officer is nothing more than an employee, and by parity of logic says that neither the General Assembly nor framers of the constitution, including Amendment No. 42, knew very much about what they were doing.

¶20The gist of the majority’s pronouncement is that the Director is not a state official within the meaning of Art. 19, § 23, of the constitution, Amendment No. 42, or any of our statutes. True, the opinion mentions what is judicially termed Enabling Act No. 123 of 1953, but whether through inadvertence or carelessness the substance of that Act is bypassed does not appear from any affirmative language. Stress is then placed upon Act 451, which appropriates for highway maintenance, the director’s office, and miscellaneous highway expenditures. We are then relegated to 42 American Jurisprudence for a determination of what the law in Arkansas is,1 together with the very comprehensive statement of Chief Justice Marshall that although an office is an employment, it does not follow that every employment is an office, for “A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without being an officer”.2

¶21In contradiction of the very statute cited as an enabling act, the majority says, “In short, we hold that the essential requirements necessary to constitute the Director of Highways an officer are lacking, and he is an employee only”.

¶22Now let’s see what the lawmaking authority has said. As has been shown, Amendment No. 42 creates the State Highway Commission and invests it with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper . . .” — to do what? “To enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the [Department]”.

¶23No finesse of construction is involved when one draws from this language the idea, (a) that the Commissioners are officers, and (b) that the commission is authorized to engage two classes of persons — officers and employees. Since the commissioners are officers and the Amendment speaks of “its officers or employees”, the meaning is too clear to admit of a suspicion of a doubt.

¶24Now the only employment mandate contained in the Amendment, § 6, is that the Commission shall appoint a Director of Highways who shall have such duties as may be prescribed by the Commission or by statute.

¶25It is now enlightening to turn to that portion of Act 123 not mentioned in the majority opinion — a statute expressly referred to as an enabling act and constructively approved. Section 3 of Act 123 says that the Director ‘ ‘ shall be the chief executive officer of the State Highway Department”, and § 4 is an imperative that he take an oath “that he will faithfully and honestly execute the duties of the office during his continuance therein”.

¶26Act 251 of 1949 was a legislative effort to change the Director from an officer to the role of an employee in order to justify an annual salary of $7,500. Section 2 of the Act eliminated the word “office” from the secondary oath the Director was required to take. But in 1953, with full knowledge that Amendment No. 42 required the appointment of a Director, the status was restored.

¶27This, however, is not all. Methods by which possession of land taken for state highway purposes under the right of eminent domain is set out in Act 115 of 1953. In any proceeding instituted “by and in the name of the state”, involving the acquisition of any real property or any interest therein, or any easement for public highway purposes, the petitioner [State of Arkansas] may file with the condemnation petition, or at any time before judgment, ‘ ‘ a declaration of taking signed by the Director of Highways, declaring that said real property or any interest therein or any easement is thereby taken for the use of the State of Arkansas.”

¶28Is this an act of sovereignty?

¶29The history of the office of Director of Highways is interesting. By Act 65 of 1929, Ark. Stat’s, § 76-305, the Treasurer of State could not pay money on warrants drawn against the highway fund unless they were countersigned by the State Highway Engineer; and at one time bonds had to be countersigned by the Director.

¶30Judge Butler, in Arkansas State Highway Commission v. Nelson, 191 Ark. 629, 87 S. W. 2d 394, quoted with approval this statement from a Florida case: ‘ ‘ The road department is a state agency and component part of the state government. The product of its work is state property. It exercises a part of the sovereign power of the state, . . . ” etc. Under Act 115 of 1953 a part of the sovereign poAver of the state — the initiation of proceedings to take private property for public purposes — is committed to the Director. Does he act as an employee, or as an officer 1

¶31In mentioning various Acts the purpose here is to stress the legislative concept of the office of director. Some of these Acts may have been amended, some superseded, and any reference to them is not for the purpose of calling attention to existing substantive law, but to illustrate how the General Assembly felt when it was treating the subject. For example, consider Ark. Stat’s, § 76-201, where it was provided that any Commissioner, or the Director of Highways, could be removed by the Governor without the consent of the Senate for inefficiency, negligence of duty, or misconduct in office.

¶32Section 76-203 imposed upon the Governor the duty of appointing a Director of Highways, who would be “the chief executive officer of the State Highway Department ’ ’. Incidentally, this is the exact language employed in Act 123 of 1953.

¶33Section 76-207, Ark. Stat’s, provided that wherever [in the laAv then applicable] an authority is granted or duty imposed upon the chairman of the State Highway Commission, “the same shall be vested in the office of the Director of Highivays”.

¶34Section 76-209, Ark. Stat’s, permitted the Director of Highways to employ in the Highway Department the personnel set out in detail.

¶35Section 76-215 compels the Director to swear that “I will [not] use any information or influence I may have by reason of my official position to gain any pecuniary reward”, and by § 76-220, Ark. Stat’s, premiums on bonds required of officials or employees of tbe Highway Department were payable as public obligations.

¶36The Governor, State Comptroller, and Director of State Highways were made an official board by Act 115 of 1935, Ark. Stat’s, § 76-228.

¶37In Downey v. Toler, Judge, 214 Ark. 334, 216 S. W. 2d 60, we held that members of the Arkansas State Police were officers, and in actions involving official duties they could be sued in Pulaski County only.

¶38An opinion written by Judge Frank G. Smith, Carter v. Bradley County Road Improvement Districts, 155 Ark. 288, 246 S. W. 9, dealt with the status of the State Highway Engineer who was required (like the present Director) to subscribe to an official oath. Carter, the engineer, had contracted with road improvement districts to do certain work. In a statement of facts Judge Smith said that Carter “took the oath of office” prescribed by the applicable statute. It required all officers and employees of the [Department] to take the oath of office provided by the constitution, and in addition a separate oath not to be interested in contracts, etc.

¶39At that time the Engineer’s duties were to make surveys, investigations and inspections, and prepare such maps, plans, specifications, estimates and reports, and do such other technical work as might be required by the Department, and “He shall, under the direction of the [Commission] perform such other duties as may be required by law and may be proper and convenient for carrying out the purposes of this Act ’ ’. After citing Bradley County Road Improvement District v. Jarratt, 144 Ark. 260, 222 S. W. 14, the opinion said that the law announced in Tollman v. Lewis, 124 Ark. 6, 186 S. W. 296, was applicable.

¶40Tallman was a commissioner of a drainage district and had been employed by the commissioners to supervise construction of a ditch. “The law under which he was proceeding”, says the decision, “did not provide that any contract made by a commissioner with the drainage district should be void, but it did require the commissioner to make oath that he would not, directly or indirectly, be interested in any contract made by the board”. The opinion then goes to this point: “So here the oath of the highway engineer must be treated as a prohibition against entering into contracts whereby he became interested, directly or indirectly”, in the result.

¶41Quite clearly Judge Smith, and this Court’s majority, held that Carter was a public officer. Reinforcing this construction is a paragraph in the opinion on rehearing, also written by Judge Smith : “It is argued that we should not hold the contract in question void as against public policy, for the reason that on March 11, 1919, tohile Garter was filling the office of State Highway Engineer, the General Assembly passed a number of acts ’ ’ [urged in absolution] .

¶42For venue purposes an action on the official bond of the Sheriff of Montgomery County was restricted to that county. But effect of the opinion was much broader. It included members of a posse who assisted the sheriff, and who were sued in Polk county. Edwards v. Jackson, 176 Ark. 107; 2 S. W. 2d 44.

¶43A reconciliation of today’s opinion with what this court has formerly said, and with the statutes and constitution, can only be achieved by applying the famous comment of Mr. Justice Roberts of the U. S. Supreme Court. In characterizing a particularly objectionable decision the justice likened it to a railway ticket, good for today and one way only.